SP v Secretary of State for the Home Department

The applicant, SP, was born on 4 September 1986, and is now 17 years old. Since 9 September 2003 she has been held at HM Prison and Young Offenders Institution at New Hall near Wakefield. When she arrived her situation was that she had pleaded guilty to various offences but had not been sentenced, and so was a remand prisoner. On 16 December 2003 she was sentenced under section 91 of the Powers of Criminal Courts (Sentencing) Act to be detained for 5 years. Between 25 September and 15 October she was removed from association and held within a segregation unit. In these proceedings for judicial review she seeks declaratory relief in respect of two matters arising from her segregation. The first is that while she was segregated she was not provided with the hours of ‘purposeful activity’ referred in Chapter 7 of Prison Service Order 4950. The second is that she was not given an opportunity to make representations as to her segregation before the decision to segregate her was made. The first claim is made with permission granted by Elias J. on 11 December 2003, and the second is made with permission granted by the Court of Appeal on 24 March 2004.

Although the issues which the claims raise are very largely matters of law I should provide somewhat more of the factual background in relation to the order for segregation. SP is a highly disturbed young woman. She had a very difficult early life. She did not attend school after she was 11. A psychiatric report dated 15 October 2003 found no evidence of mental illness but found a severely disturbed personality characterised by sadistic traits with lack of empathy to the victim, an inability to maintain personal relationships and a general lack of sense of responsibility. It referred to episodes of self-harm, over-doses, the use of prohibited drugs and excessive use of alcohol. It concluded that at this stage of her development psychiatric treatment would not help her. The offences for which she was sentenced included the robbery and assaulting of a girl who was alleged to owe her co-defendant money. The girl’s hair was cut off and SP slashed the girl’s arms with a knife, which she found funny. She wanted to cut the girl’s ears off but was told not to by her co-defendant. Assessments made by the Youth Justice Board on 2 and 18 June 2003 identified SP as being a risk to vulnerable adults, her peers, the public and to staff. While on remand in secure training centres she had committed acts of self-harm, had committed arson, cut other young people with blades and had been violent towards staff and put a substance in their tea.

On SP’s arrival at New Hall on 9 September 2003 a Self-harm at Risk Form was opened. This was closed on 18 September. A second such form was opened on 19 September and was closed on 2 October. Meanwhile on 25 September she had been moved from the wing on which she was to the segregation unit. At a meeting with her CARATS worker (Counselling, Assessment, Referral, Advice and Throughcare) at 4.15 p.m. on 24 September SP had said that she would like to harm others using a razor blade in a bar of soap. Staff were also concerned at this time about the effect SP was having on her co-defendant. In particular, on 16 September a letter from SP to her had been found suggesting that they should have tortured and murdered their victim. On 24 September a Security Information Report was opened, the assessment of the Security Officer being that SP was not suitable to be kept on her wing. At 4.20 p.m. the next day, 25 September, the Governor signed an authority for SP’s segregation under ‘Prison Rule 45 / YOI Rule 49 for reasons of good order or discipline’ for up to three days. His reasons referred to her offence, her behaviour in secure training centres, her effect on her co-defendant and the desire to use razor blades. On 28 September a further order was made for segregation until 10 October. It was in addition signed by a member of the Board of Visitors, who had earlier seen SP. On 10 October a further order was made running to 15 October. The reasons referred to fresh threats made by SP to other inmates and staff. It was again countersigned by a member of the Board of Visitors who had seen SP. On the occasion of each order forms were completed in the form prescribed by Prison Service Order 1700. These covered the activities to be permitted to SP and conditions attaching to them.

The principal Act is the Prison Act 1952. Section 47 empowers the Secretary of State to make rules for the regulation and management of prisons, young offender institutions, remand centres and secure training centres, and for the classification, treatment, employment, discipline and control of persons required to be detained in them. The rules governing prisons are the Prison Rules 1999, and those governing young offender institutions are the YOI Rules 2000 as amended by the YOI (Amendment ) Rules 2002.

Any one would expect that during her time at New Hall SP was subject to the YOI Rules and that the position would be clear and simple. But it is not the case. SP was remanded to New Hall under section 27 of the Criminal Justice Act 1948. This provides:

New Hall is both a prison and a young offender institution. It is not a remand centre. SP’s reception there was not seen as providing any difficulty because she could be accommodated in a wing with those of her own age. I was told that in other cases it was necessary to designate a cell within a young offender institution as a ‘prison’ so that section 47 could be met without sending a person of 17 to an inappropriate institution. (It was not explained what happened when the detainee stepped out of the designated cell.) Section 27 is not referred to in the Prison Services ‘Guidance for Remand Management in YOIs, Working Practice Guidance for YOI Remand Services’, 24 June 2003.

As there was no statutory power to remand SP to a young offender institution, I must proceed on the basis that she was committed to New Hall in its capacity of a prison. Nonetheless it is the fact that she was held, and rightly held, in the young offender institution part of the accommodation. Under the interpretation provision of the YOI Rules, rule 2, ‘an “inmate” means a person who is required to be detained in a young offender institution.’ It is thus the view of the Prison Service that, as SP was not required to be detained in a young offender institution but in a prison, she did not come within the YOI Rules but fell under the Prison Rules. This seems to me to be too literal an interpretation of the position. If a person of 17 is being held in a young offender institution he or she is in the ordinary sense an inmate of it and should be treated as such. Such a person should be subject to the YOI Rules and also entitled to their benefit. The main relevance here is that it brings in rule 37 of the YOI Rules entitled ‘Regime Activities’. The rules providing for removal from segregation, rule 45 of the Prison Rules and rule 49 of the YOI Rules are very similar.

Section 27 of the Criminal Justice Act 1948 requires reconsideration.

Like the Prison Rules the YOI Rules have a large ambit. I should refer to the following. Rule 8 relates to requests and complaints by inmates made to the governor or board of visitors orally or in writing, and provides that on every day the governor shall hear any oral requests or complaints made to him.

Rules 37 to 41 are entitled respectively ‘Regime activities’, ‘Training courses’, ‘Work’, and ‘Physical education’. Rules 37 and 38 provide:

Rule 49 is headed ‘Removal from association’ and provides:

Rule 51 covers the confinement of refractory or violent prisoners in special cells. Rule 55 deals with offences against discipline, and rule 60 with governor’s punishments.

The Prison Rules and the YOI Rules do little more than provide a basic framework. The detailed provisions under which prisons and young offender institutions are managed are contained in a number of Prison Service Orders. These set out policy, guidance or instructions as to how particular aspects of the prison regime are to be managed. In R(P) v Secretary of State for the Home Department [2001] 1 W.L.R.2002 the Court of Appeal had to consider the policy of the Home Department in respect of women prisoners and babies. In paragraph 35 of the judgment of the court Lord Phillips M.R. stated:

PSO 4950 is titled ‘Regimes for young women under 18 years old’. It was issued on 11 February 2000. It followed reforms made to the youth justice system made by the Crime and Disorder Act 1998. The PSO is primarily concerned with those who have been sentenced. Chapter 8 states that its requirements must be followed in relation to unsentenced prisoners, unless they contravene or are in conflict with the legal status of the individual concerned. It is stated in paragraph 1.2:

Chapter 5 is headed ‘Maintaining a safe and secure environment’, and within it paragraph 5.5 is headed ‘Managing bad behaviour’. Paragraph 5.5.4 provides:

Chapter 7 is headed ‘The full, purposeful and active day’. It reads as follows and I set it out in full because that better gives the style of the PSO:

Paragraphs 7.2, 7.3 and 7.4 cover vocational training, education and offending behaviour programmes. Paragraph 7.5 covers physical education. Paragraph 7.5.3 provides:

In order to ascertain the relevant policy of the Prison Service it is also necessary to consider PSO 1700, entitled ‘Management of segregation units and management of prisoners under rule 45 (YOI rule 49)’, the relevant version being that which was in effect between 4 November 2001 and 17 November 2003. Part A deals with the management of segregation units and the management of prisoners on dirty protest. Part B deals with the management of prisoners under the two rules. Part A, paragraph 1.3.3 provides that basic rights under the Prison and Young Offender Institution Rules can only be removed under the prison discipline system.

Part A refers to prisoners at risk of self-harm, which SP was, in these terms (the italics here and in subsequent quotations are original, likewise any heavy print):

Paragraph 1.3.4 provides:

Paragraph 3 of the Introduction to Part B states under the heading ‘Performance standards’: ‘Use of segregation will achieve the correct balance between the requirement to maintain order and discipline and the respect for human dignity.’ Paragraph 1.1 of chapter 1, ‘Policy’ explains that the purpose of rules 45 and 49 is to provide a statutory power to withdraw the opportunity for prisoners to have contact with other prisoners for two purposes – first, the maintenance of good order or discipline; second, the prisoner’s own interests. It states that governors will often feel that this is best managed in a segregation unit, but this is not mandatory. Paragraphs 1.6.1 and 1.7.1 provide:

Chapter 4 is headed ‘Regime and transfer’. Paragraphs 4.1.1, 4.1.2 and 4.1.3 provide:

I should also set out paragraph 5.2.3 from the chapter headed ‘Reviews and return to normal location’:

The PSO contains at the back a number of forms to be used in connection with segregation. These each include sections for completion headed ‘Facility’, and list domestic visits, legal visits, education, canteen, PE, work, religious services, showers, access to telephones, library and exercise. There is a column headed ‘Yes’ and by it a column headed ‘Conditions’. I have already mentioned that these forms were used in SP’s case and were completed to show what she was to be permitted.

SP’s case is that while she was in the segregation unit she did not have a regime consistent with chapter 7. Her case is that she did not have the hours of activity for which paragraph 7.1.1 provides, and that this was a deliberate breach of the Prison Service’s policy, because the institution’s authorities did not consider that paragraph 7.1.1 applied to persons on the segregation unit. That, it is asserted, was unlawful. It is the Department’s case that it is not the policy of the Prison Service that persons held on a segregation unit must be provided with the full regime set out in chapter 7 of PSO 4950 and the hours of activity there set out. It is secondly the Department’s case that a deviation from chapter 7 would not give rise to any remedy in law.

I was asked by Miss Jenni Richards appearing for the Secretary of State to take into account in determining what the policy of the Prison Service was, the statement of Mr Terence Harvey. Mr Harvey is the head of the Juvenile Group’s Secretariat within the Prison Service and has among his responsibilities the task of providing briefings and information on the management of juveniles. Mr Ian Wise submitted on behalf of SP that at least I should be cautious in relying on Mr Harvey: the PSOs should speak for themselves. Much of Mr Harvey’s statement is concerned with the development of policy since 2003, and I am not concerned with that. He does have something to say about the practicalities of the provision of activities to persons on segregation. It does not go beyond what one might well have assumed to be the case, but is helpful nonetheless. He states in paragraphs 30 to 33:

There are substantial differences arising on the evidence filed on each side as to facilities which were accorded to SP for education and exercise while she was on the segregation unit. I do not have to consider those differences. It is accepted on behalf of the Secretary of State that SP did not get the hours of activity for which Chapter 7 of PSO 4950 provides. The issue raised in these proceedings is the narrow one which I have stated.

PSOs 4950 and 1700 have to be read together to see what regime a person may expect when held on a segregation unit. It would not be surprising if the regime was restricted from the fuller regime which the person will have when living in association with others. That is because much of the ordinary regime will involve group activities. If a person cannot take part in group activities, any prolonged activity must inevitably give rise to the difficulty of sustaining one-to-one supervision. In my view paragraphs 4.1.1 to paragraphs 4.1.3 in particular of Part B of PSO 1700 make it sufficiently clear that the normal regime, that is the regime which PSO 4950 describes in chapter 7, will not be provided to persons on a segregation unit. That conclusion is strongly supported by the prescription of the forms which I have described. Those paragraphs of PSO 1700 also make it clear that nonetheless the regime should be as full as possible in the circumstances. It is important to emphasise that Chapter 7 of PSO 4950 cannot simply be forgotten on the segregation unit. It applies but with the proviso arising from PSO 1700 that it is only required to be met to the extent required by paragraphs 4.1.1 and 4.1.2 in particular of PSO 1700. I especially refer to the strong wording of paragraph 4.1.1. As I have said, SP’s case does not rely on any alleged non-compliance with SP 1700.

I conclude that the combined effect of PSO 4950 and 1700 as they stood at the relevant time, the autumn of 2003, is that governors were instructed to provide as much of the regime prescribed by Chapter 7 of PSO 4950 as was consistent with the necessity to ‘protect the prisoner concerned or to maintain the good order or discipline of the establishment’ – paragraph 4.1.1 of PSO 1700, but were not obliged to provide such aspects of the full regime as were inconsistent with that necessity. Paragraph 4.1.2 of PSO 1700 provided that a flexible approach was to be taken and referred to ‘available resources.’ It was for the governor or the authorised official to determine what would be appropriate and to complete the prescribed forms.

I must refer to R(BP) v Secretary of State for the Home Department [2003] EWHC 1963 Admin, Moses J. 17 July 2003. Mr Wise relied on the decision in support of SP’s claim. There BP’s first claim was that in January and February 2003 during two periods of detention in a segregation unit by reason of disciplinary offences he was deprived of education, training and physical education. That was in breach of rule 60(1)(c) of the YOI Rules. This was accepted on behalf of the Secretary of State and corrective instructions had been given to the institution in question. Moses J. also held that it was a breach of PSO 4950 (the version issued on 29 July 1999, titled ‘Regimes for Prisoners under 18 years old). The judgment refers to PSO 1700, pointing out that as the claimant there was not segregated under rule 49, the Order did not apply. Part A relating to the management of segregation units would have applied to the unit in question, but Part B would not have applied to the claimant. I was told by Miss Richards, who also appeared with Mr Wise in the BP case, that Moses J. was not addressed on PSO 4950, because the breach of the Rules was accepted. Clearly the matter of the breach of PSO 4950 was dealt with shortly. It seems to me that the position in BP was that the young offender institution had there acted on the basis that chapter 7 of PSO 4950 simply did not apply. That was plainly wrong. The question whether the circumstances permitted any alteration of the chapter 7 regime as provided for in the present case by PSO 1700 did not arise and was not addressed.

Mr Wise also relied on the fact that SP was a child and so came within the ambit of the decision of Munby J. in R (Howard League for Penal Reform) v Secretary of State for the Home Department [2003] F.L.R.484. Munby J. held that contrary to the statement in PSO 4950 the Children Act 1989 did apply to under 18 year olds in prison establishments. He also stated in paragraph 68 of his judgment:

However Mr Wise rightly did not submit that any curtailment of the regime set out by chapter 7 of PSO 4950 must infringe SP’s human rights. It is possible that a particular, perhaps severe, use of segregation might do so. That is why it is so important that segregation is used sparingly, and all that can be done to mitigate its harmful effects is done, having in mind the age and vulnerability of the person concerned. Whether an infringement of human rights was made out would depend upon the facts of the particular case. No case of that nature is put forward here.

I conclude therefore that it was not contrary to the policy of the Prison Service as set out in the two relevant PSOs in force at the material time that SP was not provided while she was on the segregation unit in full with the regime described in Chapter 7 of PSO 4950. That is sufficient to determine SP’s first claim.

I record that the version of PSO 1700 issued on 4 November 2001 was superseded by a new version on 17 November 2003. This includes the following:

Some time was spent at the hearing in consideration of the legal basis of SP’s claim if she established that a breach of policy had occurred in connection with PSO 4950. Mr Wise relied on the statement of Buxton L.J. in R v Home Secretary ex parte Stafford [1998] 1 W.L.R. 503 at 501:

In the course of writing this judgment, however, it has seemed to me that the answer would be simple. If a prison or a young offender institution deliberately fails to apply provisions of PSOs which are intended for the benefit of its inmates, or a class of them, then the court should make an order declaring in appropriate words that the institution is obliged to apply the relevant provisions of the PSO. That was the position in BP and, as I understand it, the order sought was not resisted. Indeed, if in any situation the court found that an institution was simply not applying an aspect of the policy of the Prison Service as set out in its PSOs, one would not expect the Department to resist the court’s seeking to remedy the situation. A different and more difficult situation might arise where it was alleged that an institution had failed in particular circumstances to comply with a provision in a PSO though accepting that generally the PSO applied. That might raise questions as to whether, and the degree to which, the institution had a discretion not to apply the provision in a particular situation. That would be the converse of the situation in P, where it was held by the Court of Appeal that the Prison Service was not entitled to apply the policy in question, the separation of mothers from babies when a baby was 18 months old, rigidly.

As I have made clear, the claim requires me to determine the rights of SP in September and October 2003, and there have since been changes to PSO 1700. It appears that a new PSO 4950 may be issued in August of this year, and that it may contain provisions which will clarify how what is now chapter 7 of PSO 4950 is to be applied in a segregation unit.

The order for SP’s segregation was made without her having an opportunity to make any representations which she might wish to make as to why the order should not be made. It was made at 4.20 p.m. on 25 September 2003 about 24 hours after she had told her CARAT worker that she felt like hurting someone with a razor blade. A public protection meeting had already been scheduled in relation to SP for the next day. She was given a notice timed at 5.10 p.m. on 25 September informing her of the segregation order, with the reasons. Paragraph 2.2.1 of Part B of PSO 1700 required that to be done within 24 hours of the making of the order using the prescribed forms. The reasons given to her had to be the same as those set out on the order unless, by doing so, it was considered likely to endanger the safety of others or the security of the establishment. The paragraph also required that the reasons must be given orally at the time of the relocation. The written notice included this printed statement:

Prior to the making of each continuation order SP was seen by a member of the board of visitors. By paragraph 2.2.1 of PSO 1700 as then in force ‘Whenever considerations of security and good order allow, the prisoner must be allowed to be present and contribute to the review of their case.’ Paragraph 2.3.2 provided for the member of the board of visitors to interview SP, examine the documentation and discuss the case with staff responsible for supervising the her. Although it is in evidence that SP attended reviews in January and April 2004 when she was again segregated – the new PSO 1700 then applied, there is no information whether she attended on 28 September and 10 October 2003.

I was referred to a number of authorities in connection with a right to make representations. The underlying concept is that of fairness. I will take them in chronological order.

Lloyd v McMahon [1987] A.C. 625 was concerned with whether a district auditor was obliged to give councillors against whom he was considering issuing a certificate an opportunity to make oral representations to him as well as written ones. Lord Bridge stated at page 702:

“My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by the way of additional procedural safeguards as will ensure the attainment of fairness.”

The relevant issue in R v Deputy Governor of Parkhurst Prison ex parte Hague [1992] 1 A.C. 58 was whether a prisoner, there an adult, was entitled to make representations that he should not be removed from association with other prisoners before a decision to that effect was made. That is the point which I have to determine, save that the claimant is here a child. In giving the judgment of the Divisional Court Ralph Gibson L.J. stated at pages 90, 91 and 92:

“A prisoner has, in our judgment, at least a reasonable expectation that he will not be removed from association with other prisoners (in the absence of disciplinary proceedings) unless, under rule 43, it shall appear desirable for the maintenance of good order and discipline on grounds which justify a reasoned decision to that effect. The consequences of segregation are unpleasant and are similar in some respects to those of common forms of punitive awards.”

………

“It seems to us that, at least, the provisional conclusion is inescapable that the decision of a governor to place a prisoner on rule 43 is capable of falling with the class of decisions made under statutory authority which is subject to the court’s supervisory jurisdiction. In other words, the governor, in the exercise of his statutory functions, is apparently under a duty to act fairly. That obligation, however, does not define the nature or extent of what fairness requires.

……….

“In this case Mr. Sedley acknowledged that there could not be an unqualified obligation in all cases upon the governor to allow the right to be heard. There may be cases of urgency. We would add that there may be difficulty in disclosing the reasons, or part of them, if, for example, the intention to segregate is based upon information obtained as to threatened misconduct, such as violence against another prisoner.
Giving detailed notice of the grounds might well indicate to the prisoner the source of the information and thereby create the risk of an immediate retaliation against the giver of the information. In this case the giving of notice to the applicant might have been regarded as giving rise to the risk of an immediate protest in breach of the rules by the applicant intended to cause others to join his protest. In another case a governor might reasonably claim that he could not sensibly disclose the reasons for his intended decision, or some part of those reasons because of the need not to reveal either the source of information or that certain facts are known to the prison department. Mr. Sedley maintained that this was not such a case and, if the right to be heard could be allowed, the law should require that it be allowed.

In our view, having due regard to the interests of the prisoner and of society at large, including the due administration of the prisons, fairness does not require that a prisoner be given the right to be heard before a decision affecting him is made under rule 43. Good administration will often allow and cause a governor to provide such an opportunity to a prisoner but that, in our view, is for decision by the governor having regard to any policy instructions given by the Secretary of State. There could be no unqualified obligation applicable in all cases for the reasons stated above. The rule, if it existed, would have to be stated in terms providing for the necessary qualifications. The requirements of the law, in prison administration, based upon natural justice, should in our view, be both clear and simple. Any such rule would open many rule 43 decisions to question on the ground that the reasons given were deficient.

Further, the prisoner who is placed on rule 43 is provided by the rules with a degree of protection. For extension beyond 24 hours there must be authority from the Secretary of State or a member of the board of visitors. The prisoner has access to a member who must hear “any complaint or request which a prisoner wishes to make:” rule 95(1). Under rule 43(3) the governor may at his discretion bring the segregation to an end. There is, in our judgment no right to be heard but to give reasons.

In the Court of Appeal Taylor L.J. reached the same conclusion but by somewhat different reasoning. He stated at page 110:

“In disciplinary proceedings which may result in punitive action, the full panoply of natural justice principles is appropriate and Parliament has provided that it should apply. Although the consequences of rule 43 are in some respects akin to those imposed as punishment the object of the rule is not punitive. Indeed, where it is invoked at the prisoner’s request it is specifically aimed at protecting him from illegal punishment at the hands of fellow prisoners. So, in the content of rule 43, although the governor and the regional director must act fairly and make reasoned decisions, the principles of natural justice are not invoked in the rules. Instead, alternative safeguards are provided to protect the prisoner’s rights. Segregation can only exceed 24 hours by authority from the Secretary of State or the board of visitors: rule 43(2). By rule 43(3) the governor may in his discretion terminate the segregation at any time. The prisoner has the right to see the governor and a member of the board of visitors: rule 8. The latter is required to hear any complaint or request the prisoner wishes to make: rule 95(1). The prisoner may petition the Secretary of State: rule 7(1).”

Thus Taylor L.J. distinguished segregation from disciplinary proceedings and held that the rules of natural justice did not apply. He held that fairness was achieved in other ways. He cited Williams v Home Office(No.2) [1981] 1 All E.R. 1211 where a similar decision had been reached at first instance similarly distinguishing disciplinary offence proceedings from transfer to segregation.

This aspect of the Hague was not considered by the House of Lords.

R v Secretary of State for the Home Department ex parte Doody [1994] 1 A.C. 531 concerned the right of prisoners serving mandatory life sentences to make written representations before the Secretary of State set the period that the prisoner should serve for the purpose of retribution and deterrence. It was held that there was such a right. In the course of an opinion with which the rest of the Committee agreed Lord Mustill stated at page 560:

“The only issue is whether the way in which the scheme is administered falls below the minimum standard of farness. What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.

My Lords, the Secretary of State properly accepts that whatever the position may have been in the past these principles apply in their generality to prisoners, including persons serving life sentences for murder, although their particular situation and the particular statutory regime under which they are detained may require the principles to be applied in a special way. Conversely, the respondents acknowledge that it is not enough for them to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is actually unfair. The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made.”

In Mehmet v O’Connor Turner J., unreported, 9 February 1999, the prisoner applicants challenged their detention within Close Supervision Centres, saying that fairness required they be told the reasons and be given the opportunity to make representations against the decision. It was held that fairness did not require that an opportunity to make representations be given. The decision was strongly relied on before me on behalf of the Secretary of State. In the course of his judgment Turner J. stated:

“In my judgment, the three cases of Wilson, Doody and Duggan (supra) make clear that the common law power, to imply standards of procedural fairness into decision making processes, is a flexible one and will ordinarily only be exercised in cases in which the rights of an individual are under threat. In the further case of Lloyd (supra) it was not the liberty of the individual which was immediately at risk but the risk that a financial penalty might be imposed. In the prison cases referred to above, the problem which confronted the courts was how to identify and categorise the circumstances which had to exist before the common law was prepared to intervene. All three cases concerned the possible delay to release dates. Standards of procedural fairness were held to require that where the consequence of the decision would adversely affect release dates, so that the liberty of the individual was at risk, as by delay in release, an opportunity to be heard must be accorded to the individual who should also know what was the nature of the case against him so that he could make informed representation against it. It is not hard, now, to understand how the courts arrived at the conclusion that where either the liberty of the individual was at stake, or his financial position was involved, concepts of procedural fairness demanded that he was able to make informed representations why a course of action, which might impact on either aspect of a person’s rights, should not be adopted. As a result it is not difficult to recognise that in cases, where the liberty or the financial interests of an individual is likely to be adversely affected, the common law, in the field of public law at least, will ensure that the individual concerned will have the opportunity of being heard. The problem in this case comes down to the question whether or not the applicants can show that allocation to a CSC does indeed impinge on their right to freedom in the sense already indicated.”

……

“It was, in my judgment, correctly submitted that the mere fact of allocation does not adversely impact on the prospects of parole. In truth, as the respondent submitted, it was the prisoner’s conduct before and not as the result of allocation which was likely to be a factor which would affect the prospect of release on parole. It was pointed out that if the effect of allocation to a CSC was beneficial, in accordance with one of its stated purposes, then prospects of release were enhanced rather than damaged as the result of allocation. This observation is consistent with that part of the decision in Bowen which will be found at p22G-23C of the transcript. That this can be expected to be the position is confirmed in the affidavit of Mr Wheatley, paragraph 23.

In conclusion, I hold that allocation of a prisoner to a CSC does not so affect his personal rights that the common law will intervene by requiring that he should have been given by standards of procedural fairness the opportunity to make representations against his allocation.”

R v Secretary of State for the Home Department ex parte Allen, Court of Appeal, unreported, 10 March 2000, was concerned with early release on home detention curfew. A decision to withhold release on home detention and curfew was subject to an appeal to a more senior governor, on which the prisoner could make representations. It was held that this was all that fairness required.

I was lastly referred to Hirst v Secretary of State for the Home Department [2001] EWCA CIV 378, Court of Appeal, 8 March 2001. This concerned the recategorisation of a discretionary life sentence prisoner from Category C to Category B. The issue was whether fairness required the claimant to be informed of the reasons for his proposed recategorisation and to have an opportunity to make representations before it took place. There was evidence to the effect that the recategorisation was likely to effect the claimant’s eventual release date. In giving the leading judgment of the Court of Appeal Lord Woolf C.J. stated:

“25.

I have found the question of what should be the outcome of this appeal by no means easy to determine. I accept the importance of the prison service being able to make decisions which are operationally important without having to go through the technical requirements of providing opportunities for making representations. However, the rules of fairness and natural justice are flexible and not static; they are capable of developing not only in relation to the expectations of contemporary society, but also to meet proper operational requirements. The ability of the prison service to meet both their operational needs and the needs for prisoners to be treated fairly can usually be achieved within the panoply of the requirements of fairness. On the whole, the courts will require considerable persuasion that administrative convenience justifies a departure from the principles of fairness which would otherwise be appropriate in a particular situation. However, the arguments which are advanced by the Home Office in this case, as I understand them, are not only ones of administrative convenience. They refer to operational difficulties and operational problems which could undermine the security and discipline within the prison system.

26.

It seems to me basic that a decision which is as important as the present decision to Mr Hirst should not be taken without giving him the opportunity to make representations and to have the matter properly considered as a consequence of his so doing. I think that there is some substance, but would not overvalue it, in the problem referred to by Lord Justice Simon Brown which arise in reconsidering a decision. However, regardless of that difficulty, it seems to me that a decision of this nature as a matter of fairness should not be taken until Mr Hirst had been fully involved. He should have been given a reasonable period to make representations before the decision was taken. He should have been given that opportunity after he had been told the grounds upon which it was appropriate to recategorise him.”

The procedures which I have to consider required SP to be told the reasons for her segregation when she was relocated, and to be given a written notice as I have stated. She was able to raise a complaint with the Governor which he was obliged to deal with under rule 8 of the YOI Rules. If the segregation was continued beyond 72 hours a further authorisation was required under rule 49(2) of the YOI Rules. Before that took place, the member of the board of visitors intending to sanction the continued segregation had to speak to her. Subject to consideration of security and good order she had the right to be present and to contribute to the review of her case. All of this, however, comes after the order has been made and she had been transferred. It is the initial decision which is the most important step, and which an inmate would most like to have the opportunity to address. It is often the case in any situation involving a decision by an authority that, once a decision has been made, it is difficult to change it.

The reasoning in Hague depended in the Divisional Court on the difficulties of affording a prisoner an opportunity to make representations prior to the initial decision to segregate, combined with the opportunities open to the prisoner subsequently. In the Court of Appeal the reasoning was that, as the decision did not involve finding an offence proved, the rules of natural justice did not apply, that is, as I understand it, there was no absolute right to be heard, and that given a prisoner’s subsequent opportunities the requirement of fairness was met. In the Divisional Court Ralph Gibson L.J. stated that there could not be a qualified obligation to permit representations, that is an obligation which depended on the circumstances, because the legal requirement must be clear and simple, and, if it were qualified, decisions not to allow representations would be open to challenge.

The evidence before me on this aspect is contained in paragraph 39 of Mr Harvey’s statement, which accords with the reasoning in Hague. He says:

“In cases of segregation for reasons of good order or discipline it is often vital to move quickly on the basis of the information that is currently available. It is not always possible to give details of the information which has led to the decision being made. Examples of such situations are where there is evidence of a planned or imminent breach of security or where there is a risk to staff, other prisoners or the prisoner concerned.”

Mr Wise submitted that I should not follow the decision in Hague on this point, which he accepted was prima facie binding on me, for the following reasons, which I put in my own order. The rules of fairness are not static and can develop to meet the expectations of contemporary society and proper operational requirements: per Lord Woolf C.J. in Hirst, and the second point listed by Lord Mustill in the passage I have quoted from his opinion in Doody. Hague was decided before the Human Rights Act came into effect: segregation may engage Article 8 (right to respect for private life) if not Article 3 (inhuman or degrading treatment). SP is a child and is a particularly vulnerable person.

PSO 1700 provides that a prisoner must be allowed to be present at a review to continue segregation, ‘whenever considerations of security and good order allow’. The policy is thus stated in qualified terms. The impracticality of a qualified rule was a major reason why the Divisional Court held as it did in Hague, but that did not find a place in the reasoning of the Court of Appeal. Nonetheless, if a limited right to be present and make representations can be accorded on reviews, there is ground for thinking that it could also be granted in respect of the initial making of the order. The urgency of a situation would be a reason for refusing the opportunity and could be considered as an aspect of ‘security and good order’ or a head in its own right. The matters referred to in paragraph 39 of Mr Harvey’s statement would not give rise to any difficulty on this basis. PSO 1700 took account of the possible need to hold back the reasons for segregation, or some of them: Part B, paragraph 2.2.1.

Although segregation is not a punishment imposed for a disciplinary offence, in cases where the order is made ‘for the maintenance of good order or discipline’ the difference may often seem slight, particularly to the subject of the order. A disciplinary offender may well be held on a segregation unit.

The PSOs which I have had to study in this case show a considerable change in the management of young offenders institutions, and, in regard to PSO 1700, to prisons also. I have to consider the question at issue in that changed context, in the context of the European Convention on Human Rights and, in this case, in the context of the rights recognised by Munby J. in the Howard League case. I have come to the conclusion that, given in particular the importance of the initial decision, fairness did require in this context that SP should have been given the opportunity to make representations before an order for segregation was made, unless reasons of good order, discipline or urgency (or other relevant circumstances) required that the order should be made without her having that opportunity. I do not think that there is good reason for allowing an inmate a limited right to make representations as to the continuation of an order, but not allowing the inmate a similar right to make representations before an order is made. I should not conclude that the decision of the Court of Appeal in Hague in 1990 is conclusive of the question.

Given that the order was not made until 24 hours after her remark to the CARAT worker about razor blades, it would not seem here that urgency was a problem. As to the reasons for the proposed order, she could have been told what she was later told on the prescribed form. But it was for the governor to decide whether in the circumstances there were good reasons for not affording her an opportunity to make representations before the segregation order was made.

Accordingly, I conclude that, subject to the limitations I have mentioned, SP should have been afforded an opportunity to make representations before a segregation order was made on 25 September 2003.

Before leaving this part of the case I must mention that the manner in which segregation orders are to be made has been considerably changed by the PSO 1700 which came into effect on 17 November 2003. Review is to be undertaken by a Review Board and the role of the board of visitors is quite different. There are a number of other differences from the preceding PSO. It is not necessary to consider them in this judgment.